HRIDAY CHANDRA DAS Vs. SHIB CHANDRA GOSWAMI

JUDGEMENT

(1.) THIS application arises out of proceedings under Chapter X of the Code of Criminal Procedure and the course taken has been that indicated in the latter part of Clause (6) of Section 135, that is to spy, an application was made to the Magistrate to appoint a jury to try whether his conditional order was reasonable and proper. A jury was appointed in the first instance but it did not return its verdict within the limited time. Thereupon, the Magistrate passed an order under Section 141. The matter then came up to the High Court on revision and the Magistrate's order absolute-not the conditional order-was set aside, and the case was sent back in order that the Magistrate might dispose of it according to law. It was clearly contemplated by the learned Judges who made that order that there should be a fresh jury appointed : and, in fact a jury was appointed as provided in Chapter X. THIS jury returned a verdict within the time limited : but the Magistrate has declined to act on it on the ground that it involved an inconsistency. Section 139 says that if the jury or a majority of the jurors find that the order of the Magistrate is reasonable and proper as originally made, the Magistrate shall make the order absolute. A majority of the jurors did find that the conditional order was reasonable and proper, and the inconsistency, on which the Magistrate has relied as a justification for disregarding it, is said that the jury are supposed to have found that the road was not a public road. To begin with I doubt whether that is the true meaning of the jury's finding. From what has been said to us I am disposed to think that their finding on this point did not go beyond this, that the way is not one generally used by the public. But all that Section 133 requires is that the way should be one which is or may be lawfully used by the public", and, there is no finding by the jury that the road may not be lawfully used by the public. But even if it were otherwise and the jury did really intend to say that the road is a private one, such a finding would be of no effect. It was not a question before them or on which they were entitled to decide. They were only entitled to decide, whether or not the order was reasonable and proper so that even if there is a finding that the road was private, then it would have no legal effect. There still remains the finding of the jury that the order was reasonable and proper and having regard to that finding it was incumbent upon the Magistrate as provided by Section 139 to make the conditional order absolute. THIS is what has been urged before us by the learned pleader who supported the Rule. We think he is right, and we, therefore, make the Rule absolute.